New Jersey Again at Forefront of Expanding Public Trust Doctrine

Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112 (N.J. 2005).

Amanda Czepiel, 3L, University of Connecticut School of Law

On July 26, 2005, the Supreme Court of New Jersey, affirming last year’s decision of the Appellate Division1, ruled that a private beach club could not limit vertical or horizontal access to its dry sand beach area for intermittent recreational purposes, although it could charge a reasonable fee for services provided.

Background
Atlantis Beach Club (Atlantis) owns a 480-foot parcel of upland sand beach in Lower Township, Cape May County. The lot extends to the mean high water line. Atlantis is located in a residential area of approximately three blocks by nine blocks, and is the only beach in Lower Township that faces the Atlantic Ocean. The Atlantis property was open to the public without charge until 1996 when Atlantis established Club Atlantis Enterprises and began charging membership fees for use of the beach and beach services. The closest free public entry is nine blocks away and access is limited due to a low number of available parking spaces.

Procedural History
In 2002 Atlantis filed a complaint seeking to enjoin the general public from “trespassing, entering and accessing” the Atlantis property, arguing that it was not required to provide public access to and use of its property or the adjacent ocean.2 The Raleigh Avenue Beach Association (Association) fought back, arguing that Atlantis was in violation of the public trust doctrine. The Association claimed the doctrine required the public be granted access to the beach through Atlantis’s property and to a portion of the dry sand for enjoyment of beach activities.

The trial court held that the public had a right to access the ocean horizontally by means of a three-foot wide strip of dry sand immediately landward of the mean high water line, but had limited vertical access. The court also held that Atlantis was prohibited from charging fees for access, but it could charge reasonable fees for services such as lifeguards. The State and the Association appealed the trial court’s decision.

The Appellate Division held that the public could cross Atlantis’s dry sand beaches to access the beach vertically from upland areas and horizontally from the public beach bordering Atlantis’s property. With regard to membership fees, the court held that Atlantis could charge a reasonable fee for extended use of the property contingent upon approval by the New Jersey Department of Environmental Protection (DEP). Atlantis appealed.

Public Access
New Jersey courts look to the following four factors to determine whether the public has access to a privately-owned beach:

(1) Location of the dry sand area in relation to the foreshore;
(2) Extent and availability of publicly-owned upland sand area;
(3) Nature and extent of the public demand; and
(4) Usage of the upland sand land by the owner.3

The court held that these factors weighed in favor of public access to the Atlantis property. First, Atlantis’s dry sand is immediately adjacent to the ocean. Second, there are no publicly-owned beaches in Lower Township, although there is significant public demand from residents and tourists. Finally, Atlantis was utilizing the upland area as a commercial enterprise that excluded the public. Due to high public demand, lack of public beaches, and the commercial-nature of Atlantis’s use of the property, the court stated that “the Atlantis upland sands must be available for use by the general public under the public trust doctrine.”4

Beach Fees
As for the beach fees, the court affirmed the Appellate Division’s determination that the DEP has jurisdiction to review Atlantis’s beach fees. The DEP has authority to issue rules and regulations governing land use within the coastal zone under the Coastal Area Facility Review Act (CAFRA). Atlantis planned to build a boardwalk pathway over the dunes and the court found that this qualified as a development triggering CAFRA jurisdiction. The DEP also has the authority to regulate health and safety issues, which would include the lifeguard and other services provided by Atlantis. The DEP, therefore, has the authority to review fees charged for use of the ocean and beach. However, the Supreme Court found that the DEP does not have the authority to regulate fees charged by Atlantis for the construction, maintenance, and rental of its cabanas and other similar business enterprises like concessions and beach chair rentals.

Conclusion
The court’s holding was not unanimous. Two justices dissented, disagreeing about the application of the four Matthews factors. The dissenters found that an adjacent beach is available to the public and the public trust doctrine only requires access to the ocean and to a small beach area. While the dissenting justices suggest a three-foot wide strip is not adequate (they recommended a ten-foot strip), they argue that the public should not be allowed to infringe on Atlantis’s private property rights any further.

The majority opinion controls, however, and Atlantis must allow public access both vertically and horizontally across its property. Despite this ruling, the issue is not likely to be quieted any time soon. Other private beach clubs with different factual situations may attempt to restrict public access in the future. A subsequent legal challenge by the general public may fail if a court is persuaded that the demand for public access has been met, and that the property has historically been held by a private entity and used commercially. In a case involving these distinguishing characteristics, a court could potentially find that a private beach club is well within its rights to restrict public access.

Endnotes
1. For a thorough discussion of the Appellate Division’s opinion, see Jennifer Simon, Not Just a Walk in the Park: Beach Access and the Public Trust Doctrine in New Jersey, The SandBar 3:3 (2004).
2. Raleigh Avenue Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112, 116 (N.J. 2005).
3. See Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984).
4. Raleigh Avenue Beach Ass’n, 879 A.2d at 124.